Filed 2/16/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES DRYDEN,

Defendant and Appellant.

 H043029*

 (Santa Clara County

 Super. Ct. No. C1367902)

A jury convicted James Dryden of two counts of assault with a deadly weapon. 

He was sentenced under the Three Strikes law to 25 years to life, consecutive to 15 years. 

He contends that the trial court committed prejudicial evidentiary error by admitting two 

uncharged acts to prove absence of self-defense, and instructional error related to those 

acts. He also raises cumulative prejudice, ineffective assistance of counsel, and 

sentencing error. 

We conclude that the trial court abused its discretion admitting the earlier (2007) 

uncharged act under Evidence Code section 1101, subdivision (b) because defendant’s 

state of mind cannot reasonably be inferred from that remote and dissimilar act. 

Admitting the later (2012) uncharged act was also an abuse of discretion because the 

evidence was substantially more prejudicial than probative under Evidence Code section 

352. But we find no due process violation, and we find the errors harmless under state 

law standards and not cumulatively prejudicial.

*

In resolving this appeal, we do not consider defendant’s pro se submission 

received in November 2019. (See In re Barnett (2003) 31 Cal.4th 466, 469 [“represented 

parties have no right to present their cases personally alongside counsel”].)
2

We further find no ineffective assistance of counsel and no abuse of discretion in 

the denial of defendant’s request to reduce the convictions to misdemeanors. However, 

we reach a different conclusion about the denial of defendant’s motion to strike his prior 

convictions under Penal Code section 1385. As we will explain, strict application of the 

Three Strikes law in this case resulted in a sentence so out of proportion to the offenses as 

to be an abuse of discretion. We will reverse the judgment and remand the matter for 

resentencing, with instructions to revisit the issue of defendant’s prior strike convictions,

and to implement sentencing reforms enacted during the pendency of this appeal 

affecting prior prison term and prior serious felony enhancements.

I. BACKGROUND

Defendant was causing a late-night disturbance in a Jack in the Box restaurant in 

October 2013. He was 51 years old, homeless, and intoxicated. According to witnesses, 

defendant became belligerent and started throwing food when a young male unwittingly 

took his seat in the restaurant. That male was 17-year-old L.J. who had spent the evening 

socializing in a nearby motel room with several friends. They encountered defendant 

around 2:30 a.m. after they left the room to get food.

Defendant was asked to leave Jack in the Box and in the parking lot he 

encountered one or more young men, including L.J., Ben, Jesse (who arrived at the 

restaurant by bicycle and was later involved in a stick fight with defendant), Nick (Jesse’s 

friend and a United States Marine, also on a bicycle and involved in the stick fight),

possibly Sean (also involved in the stick fight), and possibly Juan (who had been 

socializing with L.J., Ben, and Sean). Defendant was obstreperous and disorderly before 

retreating across the street toward a Wienerschnitzel restaurant. Jesse testified that

defendant was kicking his leg, telling the group to “back away,” and saying things like 

“you don’t know me,” and “I’ll kill all of you right now.” Witness accounts vary as to 
3

when the encounter became physical. Ben told an officer at the scene that he kicked 

defendant who was being physically aggressive as they left Jack in the Box, but at trial he 

testified that defendant was only verbally abusive at the outset and he did not kick him

until much later. L.J. testified that he went home after defendant struck him in the face 

with “a stick or a cane.”

Sean testified that he left the motel a few minutes after L.J. and Ben went to Jack 

in the Box. He went to Wienerschnitzel across the street from Jack in the Box but did not 

order anything. As he was walking back to the corner and not paying attention to his 

surroundings, he heard someone say “ ‘hey, you must be one of them too.’ ” He turned 

around and defendant hit him three times with a stick. Sean fell, and as he was getting 

up, Jesse and Nick approached on bicycles and started yelling at defendant. Sean walked 

away during the fray and returned to Wienerschnitzel. He explained to an officer at the 

scene, “I think he’s got a real reason, but [] I’m not, like the dude.”

Jesse testified that a short time after defendant left Jack in the Box, from his 

vantage point inside the restaurant he could see defendant on the other side of the street 

walking with a bamboo stick about four feet long. He saw defendant “bump” the front of 

someone he did not recognize who turned out to be Sean. Jesse testified that defendant 

“started wielding the stick toward” Sean, causing Sean to back up with his arms in the air. 

Afraid for Sean, Jesse and Nick ran across the street with their bicycles and interceded. 

Defendant swung the stick at Jesse, yelling “ ‘[y]ou’re one of them,’ ” and “ ‘[n]ow I’m 

going to come after you.’ ” Jesse was struck on the back of the neck as he ducked to 

protect his head. The stick splintered on impact, imbedding a piece of bamboo in Jesse’s 

skin. The stick split in two as they wrestled with it. Jesse wielded one piece of the 

broken stick in a defensive manner, and threw it at defendant who was coming at him. 

He may have struck defendant.
4

A motorist (who was an off-duty reserve police officer) called 911 and reported “a 

man with a large stick ... fighting with three other males. [¶]...[¶] Across from the Jack 

in the Box.” In real time he saw “the man swinging the stick and the guys yelling at 

him.” Then he observed the man with the stick “walking across the street now” and 

arriving “at the Jack in the Box,” and the three males at the Wienerschnitzel. Then he 

saw the three males “going across the street [¶]...[¶] running toward[]” the man with the 

stick, and an officer (Officer Lau) arriving at the Jack in the Box. He testified at the 

preliminary hearing “that the person with the stick was moving forward and the other two 

guys were moving backward.”

A Wienerschnitzel employee testified that he spoke with defendant, whom he 

recognized as a local homeless man, after seeing him in the Jack in the Box parking lot 

confronted by several young men shouting obscenities. Laughing and appearing high,

defendant approached the Wienerschnitzel window and told the employee that the males 

wanted to start a fight but “ ‘they don’t know who they are messing with.’ ”

The employee testified that a short while later defendant returned to 

Wienerschnitzel with blood on his eye and asked to use the bathroom. He was followed 

by three males who asked the employee to call 911. One had a stick and said he had been 

hit. The employee called 911, reporting “a problem with ... some drunk guy” and 

“gangster guys” fighting with that person. The employee was shown a still image of Ben, 

Sean, Jesse, Nick, and Juan captured from Officer Lau’s car-mounted video camera. He 

recognized only Ben from that image as one of the three who came to the window, and he 

specifically recalled Ben saying “ ‘we’re going to jump him.’ ” He recognized Juan from 

a different photograph as also being at the window that night. According to the 

employee, defendant crossed the street and entered Jack in the Box, the males followed 
5

defendant, and because of the way they were acting, the employee believed they were 

“look[ing] for further trouble.”

Officers located defendant and a piece of a bamboo stick behind a retaining wall 

next to Jack in the Box. Defendant, Sean, Ben, Jesse, and Nick were interviewed at the 

scene. Defendant told Officer Lau repeatedly that he had been “rat-packed” by about 

“six of them” as he was returning to Jack in the Box for his metal cane. He pointed out 

Ben as the “main one” who told the others to “get him,” and Nick (who had already 

identified himself to Officer Lau as a Marine) as the male who struck him in the eye with 

a stick while the others said “[b]ang him, bang him.” He said he defended himself, 

although he denied striking anyone. Officer Lau determined defendant to be the 

aggressor and arrested him.

A forensic pathologist testified that the bamboo stick was capable of inflicting 

great bodily injury or death. The injuries depicted in the photos of Sean and Jesse were 

consistent with being struck by a bamboo stick, but the amount of force used could not be 

determined from the photos. The pathologist explained that although uncommon, a blow 

to the ear or neck area could lacerate or dissect the vertebral artery, causing death. She 

considered Jesse lucky given his neck injury because it “only take[s] one blow at the 

wrong angle” or with the “head being turned that can cause a devastating injury, which 

can ultimately lead to death.” 

Defendant was charged with two counts of assault with a deadly weapon on Sean 

and Jesse. (Pen. Code, § 245, subd. (a)(1).) The information alleged he committed the 

offenses using a dangerous and deadly weapon (a bamboo stick) within the meaning of 

Penal Code sections 667 and 1192.7. The information alleged three prior felony 

convictions under the Three Strikes law (Pen. Code, §§ 667, subd. (b)–(i); 1170.12); three 

prior serious felony convictions within the meaning of Penal Code section 667, 
6

subdivision (a); and two prior prison terms within the meaning of Penal Code section 

667.5, subdivision (b). 

A jury convicted defendant of the assaults including the special allegation, and the 

trial court found true the prior convictions. The trial court denied defendant’s motion to 

reduce the counts to misdemeanors under Penal Code section 17, subdivision (b) and to 

strike the prior convictions in the interest of justice under People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497. Defendant was sentenced to concurrent terms of 25

years to life consecutive to 15 years. The prior prison term enhancements were stayed.

II. DISCUSSION

A. UNCHARGED ACT EVIDENCE

1. Evidence Code Section 1101(b)

Evidence that a person committed a crime or other act is admissible to prove a fact 

other than propensity, such as motive, intent, or absence of mistake or accident. (Evid. 

Code, § 1101, subd. (b).) The Supreme Court has identified three factors essential to the 

admissibility of such other-act evidence (sometimes referred to as evidence of an 

uncharged act or an uncharged crime): “(1) the materiality of the fact sought to be 

proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the 

material fact; and (3) the existence of any rule or policy requiring the exclusion of 

relevant evidence.” (People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson), 

superseded on other grounds as stated in Clark v. Brown (9th Cir. 2006) 442 F.3d 708, 

714, fn. 2.) 

The first factor—materiality—is not at issue in this case, as the fact sought to be 

disproved by the prosecution relates to defendant’s mental state: whether defendant had 

an objectively reasonable belief in the need for self-defense. (People v. Humphrey

(1996) 13 Cal.4th 1073, 1082; People v. Wells (1949) 33 Cal.2d 330, 345 [self-defense is 
7

“limited to such acts as are either actually reasonably necessary or which would appear to 

a reasonable person, under the same circumstances, to be reasonably necessary”].) The 

parties dispute the second and third factors under Thompson—relevance and exclusion.

Under the second factor, an uncharged act may be relevant circumstantial evidence 

of motive or specific intent, undermining a self-defense claim. (People v. Demetrulias

(2006) 39 Cal.4th 1, 14 (Demetrulias) [uncharged act was circumstantial evidence of 

motive and specific intent to rob, negating self-defense claim]; People v. Simon (1986) 

184 Cal.App.3d 125, 130–131 (Simon) [jealousy motive, if shown by uncharged act, may 

be admissible to establish same motive and undermine self-defense claim].) Under what 

is referred to as the doctrine of chances, an uncharged act may be relevant “to prove 

intent ‘as a generic notion of criminal volition or willfulness, including the various noninnocent mental states accompanying different criminal acts.’ ” (Leonard, The New 

Wigmore: Evidence of Other Misconduct and Similar Events (2d ed. 2019) § 7.3.2, 

p. 486.)

Reciting from an earlier Wigmore treatise, our Supreme Court described the 

doctrine of chances as capturing “ ‘the instinctive recognition of that logical process 

which eliminates the element of innocent intent by multiplying instances of the same 

result until it is perceived that this element cannot explain them all.’ ” (People v. Robbins

(1988) 45 Cal.3d 867, 879 (Robbins), quoting from 2 Wigmore, Evidence (Chadbourn 

rev. 1979) § 302, at p. 241.) The doctrine embraces an improbability theory: “ ‘[A]n 

unusual and abnormal element might perhaps be present in one instance, but [] the 

oftener similar instances occur with similar results, the less likely is the abnormal element 

likely to be the true explanation of them.’ ” (Robbins, at p. 879.) In other words, the 

doctrine of chances applies where the coincidence between two (or more) events 
8

“becomes too abnormal, bizarre, implausible, unusual or objectively improbable to be 

believed.” (The New Wigmore, supra, § 7.3.2, p. 487.)1

A trial court must “examine the precise elements of similarity between the 

offenses with respect to the issue for which the evidence is proffered and satisfy itself 

that each link of the chain of inference between the former and the latter is reasonably 

strong.” (People v. Schader (1969) 71 Cal.2d 761, 775.) “If the connection between the 

uncharged offense and the ultimate fact in the dispute is not clear, the evidence should be 

excluded.” (Thompson, supra, 27 Cal.3d at p. 316.) 

The third Thompson factor recognizes extrinsic policies limiting admissibility of 

uncharged acts. Because “ ‘substantial prejudicial effect [is] inherent in [such]

evidence,’ ” uncharged acts are admissible under Evidence Code section 352 only if they 

have substantial probative value. (Thompson, supra, 27 Cal.3d at p. 318; People v. 

1 By way of illustration, the Supreme Court recognized the doctrine of chances as 

a basis for inferring criminal intent in Demetrulias. The uncharged conduct in 

Demetrulias—a robbery accomplished by assault occurring almost immediately after the 

charged murder—showed the defendant acted with a motive to take the assault victim’s 

money; a rational inference therefore could be drawn that the defendant acted with the 

same motive for money rather than in self-defense when he stabbed the murder victim 

hours earlier. (Demetrulias, supra, 39 Cal.4th at pp. 7, 14.) The uncharged assault was 

also substantially similar to the murder to bear on the defendant’s specific intent to rob in 

committing the murder: “Twice in one evening, the defendant entered an older man’s 

home, confronted the man alone, and stabbed the man several times hard enough to inflict 

serious wounds, including in both cases stab wounds to the chest.” (Id. at p. 16.) The 

defendant acknowledged having pleaded guilty to the robbery and assault against the 

second victim, yet he testified that he had acted in both instances in self-defense. (Id. at 

pp. 8, 9, 19.) Invoking the doctrine of chances, the Supreme Court observed that a “jury 

could rationally find it unlikely that defendant had the extremely bad luck to be attacked 

within a short period of time by two older solitary men in ways that required him to use 

potentially deadly force against the older men to repel the attacks.” (Id. at p. 16.) 

Instead, the jury could rationally infer “that defendant probably attacked both men with 

the same criminal intent—robbery.” (Ibid.)
9

Ewoldt (1994) 7 Cal.4th 380, 404 [“Evidence of uncharged offenses “ ‘is so prejudicial 

that its admission requires extremely careful analysis’ ”]; People v. Lewis (2001) 25 

Cal.4th 610, 637 [“ ‘[T]he probative value of the uncharged offense evidence must be 

substantial and must not be largely outweighed by the probability that its admission 

would create a serious danger of undue prejudice, of confusing the issues, or of 

misleading the jury’ ”].) The probative value of evidence depends on the degree of 

relevancy (the extent to which the evidence tends to prove an issue by logic and 

reasonable inference), materiality (the importance of the issue to the case), and necessity 

(the need to prove the issue by means of the uncharged act). (Thompson, at p. 318, fn. 

20.)

A trial court’s rulings under Evidence Code sections 1101 and 352 are reviewed 

for abuse of discretion (People v. Hendrix (2013) 214 Cal.App.4th 216, 239 (Hendrix)), 

with attention paid to “ ‘the legal principles and policies that should have guided the 

court’s actions.’ ” (Sargon Enterprises, Inc. v. University of Southern California (2012) 

55 Cal.4th 747, 773.) 

2. Evidence Presented of 2007 and 2012 Conduct

Defendant presented a defense through his recorded statement to Officer Lau that 

he acted in self-defense against a group of young men who “rat-packed” him. To rebut 

that defense, the prosecution sought to present evidence of several past altercations in 

which defendant had also claimed self-defense. The trial court reasoned that prior claims 

of self-defense would be admissible rebuttal evidence under Evidence Code section 1101, 

subdivision (b) and Demetrulias to prove absence of a good-faith reasonable belief in the 

need for self-defense, if the acts were “similar enough” to the instant case.

The prosecution offered that in 2007 defendant injured an elderly person by 

strangulation, claimed self-defense to the responding officer, and later admitted there was 
10

no threat requiring self-defense. The victim in that incident was defendant’s father who 

had reported being choked when defendant tried to break into his home. Defendant had 

reported that his father was mentally ill and started a fight, and defendant punched him to 

get away. Regarding a 2012 assault, the prosecution offered that defendant was in an 

altercation with a homeless person at a bus stop. Defendant was intoxicated, used his 

cane to strike the victim in the head, and claimed self-defense both at the scene and at a 

trial which resulted in an acquittal.

Ruling from the bench, the trial court noted five facts regarding the instant case: 

defendant inflicted wounds; to the head; with an object; while intoxicated; and claimed

self-defense. The court observed in both the 2012 incident and the instant case that 

defendant struck the victim in the head with a cane while intoxicated and claimed selfdefense, and defendant also claimed self-defense in the 2007 case. The court did not 

address defendant’s argument that the uncharged acts evidence would be more prejudicial 

than probative. Based on the prosecution’s case-in-chief and offers of proof regarding 

assaults in 2007 and 2012, the trial court ultimately ruled that the two past assaults were 

admissible. A 2005 assault was not admitted as other-act evidence because there 

defendant did not claim self-defense. But that conviction was admitted as impeachment 

evidence, along with five other felony convictions—burglary in 1989, assaults in 1999 

and 2001, and the 2007 assault and associated burglary.)

At trial, a Los Angeles police officer testified regarding the 2007 incident that he 

responded to a battery in progress at the home of defendant’s 66-year-old father where he 

observed signs of forced entry into the home (a screen removed from an open window). 

Defendant did not appear intoxicated, he had a small mark on his arm, and he told the 

officer he had punched his mentally disturbed father who had bitten his arm. Defendant’s 
11

father had a scraped arm, and lacerations on his chin and leg. He was upset and excited, 

but he did not appear mentally ill. Defendant pleaded guilty to assault and burglary.

Regarding the 2012 incident, a Santa Clara County sheriff’s deputy testified that 

he saw defendant at a bus stop strike a 41-year-old man with a metal cane several times, 

and then grab a set of headphones from the man’s hands. Both men appeared homeless 

and intoxicated, and defendant was enraged. The officer did not see the altercation start. 

Defendant, who appeared uninjured, told the officer he and the other man knew each 

other, the other man had hit him in the face twice with a closed fist, grabbed him, and 

would not let him go. The other man was covered in blood, with injuries to his head and 

face. Ten color photographs were admitted in evidence over defendant’s objection,

including photographs of the man holding a gauze pad to his face with a bloody hand; the 

man, with a bloody face and bandaged head, being assisted by paramedics on a 

backboard; blood pooled on the ground by the bus stop bench; a metal cane with blood on 

the handle; and close ups of the man’s head injuries. Defendant was charged with assault 

with a deadly weapon. The man died (for reasons unrelated to the charged incident) 

before that case was tried to a jury in September 2013. The deputy testified at that trial, 

and defendant was found not guilty.

3. Analysis

Defendant argues that the past acts lack substantial similarity from which to infer

non-innocent intent under the doctrine of chances. In determining relevancy under the 

doctrine of chances, the question is whether, without relying on character inferences, the 

occurrence of both acts may lead to a conclusion that the defendant did not act with an 

innocent mental state in the charged act. The circumstances of both the charged and 

uncharged acts determine the relevance and probative value of the evidence. (The New 

Wigmore, supra, § 7.5.2., at p. 507; Robbins, supra, 45 Cal.3d at p. 880 [circumstances 
12

of the uncharged act must be “sufficient to raise an inference that the [current] offense 

was committed with the charged intent(s)”].) 

a. The 2007 Evidence

The 2007 assault involved an altercation between defendant and his father. 

Defendant sought entry into his father’s home by force. He physically fought his father 

without using a weapon, and he pleaded guilty to assault and residential burglary. The 

circumstances of the 2007 assault are similar to the instant case only in that defendant 

committed an assault and initially claimed self-defense. But the conduct itself does not 

increase the probability that defendant fabricated a self-defense claim several years later 

under entirely different circumstances—against a group of strangers in a public place. 

Unlike the facts in Demetrulias, where the uncharged assault occurred within hours of the 

charged murder and the evidence showed a common motive (Demetrulias, supra, 

39 Cal.4th at p. 14), here we have unrelated assaults occurring six years apart with no 

similarities in circumstance or shared logical nexus. Nor does the decision to plead guilty 

to the 2007 charges allow a reasonable inference as to defendant’s mental state in the 

instant case, where he maintained his self-defense claim at trial. Given the absence of a 

logical nexus between the prior offense and defendant’s disputed mental state, the trial 

court’s ruling was an abuse of discretion. (See People v. Durham (1969) 70 Cal.2d 171, 

186–187 [the evidence should be excluded if a connection between the uncharged offense 

and the ultimate fact in dispute is not clear]; People v. Sam (1969) 71 Cal.2d 194, 203.)

b. The 2012 Evidence

Defendant argues the similarities in the 2012 acts and the instant case (defendant 

was intoxicated, struck victims using a cane or walking stick, and told officers he had 

acted in self-defense) are not probative of his mental state in the current case because the 

proffered facts demonstrated that the 2012 self-defense claim was genuine. In a related 
13

argument, he urges that the trial court erred under Simon by failing to make a finding 

under Evidence Code section 403, subdivision (a), that sufficient evidence existed for the 

jury to determine the existence of that preliminary fact. Respondent counters that the 

2012 evidence showed defendant inflict force in excess of what was reasonable under the 

circumstances, demonstrating that he acted with a non-innocent intent to escape criminal 

liability. 

i. Evidence Code section 403

The prior act evidence in Simon showed two motives, one of which (jealousy) was 

relevant to the defendant’s motive in the charged case. (Simon, supra, 184 Cal.App.3d. at 

pp. 128–129.) Because the prior act was admissible only if it was motivated by jealousy, 

the Simon court directed the trial court on remand to make a preliminary determination 

under Evidence Code section 403 whether the prior act evidence could support a jury 

finding under a preponderance standard that the prior act was motivated by jealousy. 

(Id. at p. 134.) Though the trial court here rejected defendant’s request to conduct a 

hearing under Evidence Code section 403, finding the Simon case to be “in disagreement 

somewhat” with the more recent Supreme Court opinion in Demetrulias,

2 we infer from 

the trial court’s acceptance of the prosecution’s offer of proof that the evidence would be 

sufficient for the jury to find that defendant acted in 2012 with a non-innocent intent. 

Indeed, the purpose of the proffer was to identify the similarities to the charged assaults 

2 The trial court ruled the evidence admissible with a limiting instruction as in 

Demetrulias, that “the evidence, ‘if believed’ was not to be considered as showing 

defendant’s bad character or ‘disposition to commit crimes,’ but only for the limited 

purpose of ‘determining if it tends to show’ a characteristic ‘method, plan or scheme’ 

similar to that used in the charged crime, the ‘intent which is a necessary element of the 

crime charged,’ or ‘a motive for the commission of the crime charged.’ ” (Demetrulias, 

supra, 39 Cal.4th at p. 14.)
14

(including whether defendant’s claim of self-defense was genuine), and the trial court 

was aware that the standard of proof on that issue is a preponderance of evidence. 

Defendant argues that non-innocent intent cannot be inferred from the 2012 

incident because it is not objectively improbable that a person in his circumstances could 

repeatedly face situations requiring self-defense. Under the doctrine of chances, the 

degree of relevance of an uncharged act will vary “ ‘according to the probability that the 

act could be repeated, within a limited time and under given circumstances, with an 

innocent intent.’ ” (Robbins, supra, 45 Cal.3d at p. 880.) Drawing from the same 

authority as did the Supreme Court in Robbins, this court has explained that objective 

improbability (supporting an inference of wrongdoing) is based on three threshold 

criteria: “(1) each uncharged incident must be ‘roughly similar to the charged crime’

[citation]; (2) counting both charged and uncharged incidents, the accused must have 

been ‘involved in such events more frequently than the typical person’ [citation]; and (3) 

the existence of mens rea ‘must be in bona fide dispute,’ such that the prosecution has ‘a 

legitimate need to resort to the uncharged misconduct evidence to prove intent’

[citation].” (People v. Rocha (2013) 221 Cal.App.4th 1385, 1395, citing Imwinkelried, 

The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The 

Doctrines Which Threaten to Engulf the Character Evidence Prohibition (1990) 51 Ohio 

St. L.J. 575, 593.)

Defendant urges that the second of Imwinkelried’s criteria is not met here because 

acting in self-defense is not an infrequent occurrence for a person living on the streets. 

We agree that homeless persons are more vulnerable to violence than the housed 

population. (See People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 747 [recognizing 

that “homeless individuals are victims of violent crime at a much higher rate than the 

general population”].) But we are not persuaded that the two violent encounters 
15

involving defendant represent such commonplace occurrences among the homeless 

population that they cannot support an inference of wrongdoing. Having remained in 

custody from arrest to acquittal on the 2012 case, defendant had been living on the streets 

for only 19 days between the assaults. Based on that temporal proximity and the 

similarities between the events, a reasonable jury could infer that on both occasions 

defendant acted with a non-innocent mental state. (See Demetrulias, supra, 39 Cal.4th at 

p. 16 [jury could infer from the totality of evidence that the defendant acted with the 

same criminal intent in two instances].)

ii. Evidence Code section 352

We reach a different conclusion when we consider the effect of the evidence 

admitted about the 2012 event. “ ‘[T]he probative value of the uncharged offense 

evidence must be substantial and must not be largely outweighed by the probability that 

its admission would create a serious danger of undue prejudice, of confusing the issues, 

or of misleading the jury’ ” under Evidence Code section 352. (People v. Lewis (2001) 

25 Cal.4th 610, 637.)

The parties disputed whether defendant acted in self-defense in the 2012 incident. 

A police officer in his patrol car saw defendant striking the victim. Because the officer 

did not see how the altercation began, the prosecution discredited defendant’s selfdefense claim by establishing through testimony and photographs that defendant used 

more force than was reasonably necessary to defend against any claimed aggression. But 

the amount of force necessary and used in 2012 was not probative of whether defendant 

had a legitimate need to use self-defense in 2013. The issue here is not whether 

defendant used excessive force but whether a reasonable belief in perceived danger 

justified his use of force against Sean and Jesse. By focusing on the quantum of force 

used, the 2012 evidence would cause the jury to prejudge defendant on the basis of 
16

extraneous character-based factors. (People v. Foster (2010) 50 Cal.4th 1301, 1331 

[“ ‘ “the jury might be unable to identify with a defendant of offensive character, and 

hence tend to disbelieve the evidence in his favor” ’ ”].) The graphic photographs 

depicting defendant as callous and violent were inflammatory and created a substantial 

danger of evoking an emotional bias against him. (Ibid.) 

We reject respondent’s argument that the probative value of the 2012 incident was 

substantial given the similarities to the instant case, and thus outweighed any tendency to 

evoke emotional bias. By itself, the force used in 2012 is not probative of defendant’s 

mental state in 2013. Although the events were similar (defendant assaulted someone 

using a cane or stick while intoxicated), that does not mitigate the inflammatory nature of 

the 2012 photographs, particularly when the injuries to the homeless man appeared 

serious, while the injuries to Sean and Jesse were relatively minor and did not require 

medical attention.

Evidence of the 2012 incident was further prejudicial because in this case the jury 

was aware that defendant had been acquitted of the 2012 charge. That circumstance can 

produce “ ‘a “tendency to condemn, not because [defendant] is believed guilty of the 

present charge, but because he has escaped unpunished from [an] other offense[].” ’ ” 

(People v. Foster, supra, 50 Cal.4th at p. 1331.) 

Although a limiting instruction can minimize the danger that a jury will consider 

evidence for an improper purpose (Hendrix, supra, 214 Cal.App.4th 216, 247), the

court’s instruction here did not serve that end given the issues in this case. Using 

CALCRIM No. 375, the jury was cautioned appropriately that it must not conclude from 

the 2012 evidence “defendant has a bad character or is disposed to commit a crime”; the 

evidence “is not sufficient by itself to prove that the defendant is guilty”; and the 

prosecution “must still prove each charge and allegation beyond a reasonable doubt.” 
17

The same instruction, however, permitted the jury to consider the “evidence of other 

behavior by the defendant” if it decided he had committed “the uncharged acts.” But it 

was not disputed that defendant committed the assaults on his father in 2007 and the 

homeless man in 2012; the issue was whether he had genuine self-defense claims in those 

instances. The instruction therefore did not squarely address the danger created by the 

uncharged act evidence, allowing the jury to determine defendant’s mental state based on 

propensity. (Hendrix, at pp. 249–250.) 

Respondent argues the instruction appropriately limited the jury’s consideration to 

whether the uncharged acts “ ‘tend[] to show a motive, self-defense or some other 

innocent mental state,’ or other relevant mental states.” The trial court adopted 

CALCRIM No. 375 to include: “If you decide that the defendant committed the 

uncharged acts, you may, but are not required to, consider that evidence for the limited 

purpose of deciding whether or not this evidence tends to show a motive, self-defense or 

some other innocent mental state, or a characteristic method, plan or scheme.” The 

instruction does not make clear that the uncharged act evidence may be considered 

specifically for establishing “motive, self-defense[,] some other innocent mental state, or 

a characteristic method, plan or scheme” in this case. Instead, it allowed the jury to 

consider motive and characteristics of the uncharged acts themselves, neither of which 

was relevant to the self-defense inquiry in the instant case.

iii. The errors do not require reversal

Error in a criminal case is considered harmless unless it resulted in a miscarriage 

of justice. (Cal. Const., art. VI, § 13.) The defendant must demonstrate that but for the 

error “it is reasonably probable that a result more favorable to the [defendant] would have 

been reached.” (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant contends that 

standard is met because the prosecution’s case was not compelling and the prosecutor 
18

used the prior act evidence to argue defendant has a propensity for violence. Respondent 

counters that defendant’s role as initiator and aggressor was supported by the totality of 

the record because “not a single witness testified that [Ben] or any one of his friends did 

anything to place [defendant] in reasonable fear for his safety before [defendant] 

physically assaulted one or more of them.” But the question is not whether evidence in 

the record is sufficient to support the jury’s verdict. In examining an error for prejudicial 

effect, we do not view the evidence or presume facts in favor of the verdict. (People v. 

Mil (2012) 53 Cal.4th 400, 418.) Rather, we review the entire record to determine 

whether “it is reasonably probable that a result more favorable to [defendant] would have 

been reached in the absence of the error.” (Watson, at p. 836.)

We give full consideration to the showing that defendant was outnumbered by 

several young men in the Jack in the Box parking lot, and to Ben’s statement at the scene 

that he kicked defendant at that time. But we see no evidence suggesting that Sean was 

aggressive toward defendant which would justify defendant’s use of force against Sean or 

against Jesse, who came to Sean’s aid. 

In the context of the altercation in the parking lot, we consider whether it is 

reasonably probable that one or more jurors would conclude that the prosecution failed 

meet its burden of proving beyond a reasonable doubt that defendant did not act in lawful 

self-defense if this case were tried without the erroneous admission of the prior acts 

evidence. (People v. Soojian (2010) 190 Cal.App.4th 491, 523.) Lawful self-defense 

requires (1) that defendant reasonably believed he was in imminent danger; (2) that the 

immediate use of defensive force was necessary to defend against that danger; and (3) 

that defendant used no more force than necessary to defend against the danger. 

(CALCRIM No. 3470; People v. Minifie (1996) 13 Cal.4th 1055, 1065 [what is 
19

reasonable under the circumstances is determined from the point of view of a reasonable 

person in the defendant’s position].) 

We reject defendant’s argument that individually or cumulatively the evidentiary 

errors rise to the level of a due process violation, which would place the burden on the 

prosecution to show harmlessness beyond a reasonable doubt. The introduction of 

improper evidence against a defendant does not amount to a violation of due process 

unless the evidence “is so extremely unfair that its admission violates ‘fundamental 

conceptions of justice.’ ” (Dowling v. United States (1990) 493 U.S. 342, 352.) For the 

erroneous admission of evidence to amount to a denial of due process, the evidence must 

have been “ ‘sufficiently material to provide the basis for conviction or to remove a 

reasonable doubt that would have existed on the record without it.’ ” (Johnson v. Ross

(2nd Cir. 1992) 955 F.2d 178, 181.) That standard has not been met here.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that trial counsel rendered ineffective assistance by not objecting 

to Officer Lau’s testimony regarding his reasons for arresting defendant. Officer Lau 

testified that he considered defendant to be a suspect based on the evidence, statements 

provided by the victims and witnesses, and the demeanor of the victims and defendant. 

He testified that defendant was arrested even though he claimed to be the victim, “[b]ased 

on the statements from all the witnesses” and Jesse’s injuries and complaint of pain. 

According to defendant, Officer Lau implicitly opined that the young men and the reserve 

officer who called 911 were being truthful, and defendant was not, which constituted 

inadmissible lay opinion and counsel should have objected.

An ineffective assistance claim requires a showing both that counsel’s 

performance fell below an objective standard of reasonableness and that defendant was 

prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 
20

687.) The record on appeal must “affirmatively disclose[] that counsel had no rational 

tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 

581.) And defendant must show a reasonable probability of a more favorable result but 

for trial counsel’s errors. (Strickland, at p. 694.) A reasonable probability is “a 

probability sufficient to undermine confidence in the outcome.” (People v. Williams

(1997) 16 Cal.4th 153, 215.) Defendant has not met that burden here.

Lay opinion testimony is admissible if it is “[r]ationally based on the perception of 

the witness,” and “[h]elpful to a clear understanding of his testimony.” (Evid. Code, 

§ 800, subds. (a)–(b).) But lay opinion “about the veracity of particular statements by 

another is inadmissible on that issue.” (People v. Melton (1988) 44 Cal.3d 713, 744.) A 

law enforcement officer’s testimony regarding the focus of a criminal investigation is not 

considered inadmissible lay opinion. (People v. Virgil (2011) 51 Cal.4th 1210, 1254.) In

Virgil, a detective testified that he began to consider the defendant a suspect in a murder 

investigation because the composite of the suspect resembled the defendant, whom he 

had recently interviewed about an unrelated burglary. (Id. at p. 1230.) The Virgil court 

held that the challenged testimony “was based on the detective’s perceptions and was 

helpful for the jury to understand how [the detective] came to suspect defendant was 

connected to the [charged] homicide.” (Id. at p. 1254.) The same cannot be said here.

Defendant was arrested at the scene. Officer Lau’s testimony regarding his perceptions 

of the scene and the individuals involved in the altercation was unnecessary to explain 

how the investigation unfolded and resulted in defendant’s arrest. His observations about

the demeanor of the victims, witnesses, and defendant and his consultation with the 

officers who interviewed the victims and witnesses went beyond explaining his 

investigative steps. Although an officer’s testimony with respect to whether he believed 

a witness may be admitted to “ ‘assist[] the jury in understanding the actions of the 
21

police’ ” (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33), because there was no 

need for such assistance here the testimony at issue served only as implicit vouching for 

the credibility of certain participants over that of defendant.

Even though an objection to some of Officer Lau’s testimony should have been 

made and sustained, defendant has not shown prejudice. It is axiomatic that Officer Lau 

believed he had grounds to arrest defendant. But that decision was not central to the trial, 

which focused on the recollections of defendant, the victims, and the witnesses. The 

video-recorded interviews of Sean and defendant were played for the jury, along with the 

recorded portion of Ben’s interview. The jury also saw the footage from Officer Lau’s 

car-mounted video camera as he arrived on scene and conducted his investigation. The 

jury was instructed, “You must decide what the facts are. It is up to all of you, and you 

alone, to decide what happened, based only on the evidence that has been presented to 

you in this trial,” and “[y]ou alone must judge the credibility or believability of the

witnesses.” Nothing in the record undermines our confidence that the jury followed those 

instructions and decided the issues based on its own assessment of the evidence. (See 

People v. Riggs (2008) 44 Cal.4th 248, 300.)

C. SENTENCING ISSUES

1. Discretion Under Penal Code Section 17(b)

A trial court has discretion to reduce an assault to a misdemeanor at the time of 

sentencing. (Pen. Code, § 17, subd. (b)(1), (3).) Factors relevant to the trial court’s 

decision include “ ‘the nature and circumstances of the offense, the defendant’s 

appreciation of and attitude toward the offense, [and] his traits of character as evidenced 

by his behavior and demeanor at the trial.’ ” (People v. Superior Court (Alvarez) (1997) 

14 Cal.4th 968, 978 (Alverez).) Courts may also consider the sentencing objectives set 

forth in California Rules of Court, rule 4.410. (Ibid.) Those include protecting society, 
22

punishing the defendant, deterring crime, encouraging the defendant to lead a lawabiding life, and preventing the defendant from committing new crimes. (Cal. Rules of 

Court, rule 4.410(a).) The trial court’s discretion under Penal Code section 17(b) is 

broad, and it will not be disturbed on appeal unless it is clearly shown the decision was 

irrational or arbitrary. (Alvarez, at p. 977.) Absent such a showing, we presume the trial 

court acted to achieve legitimate sentencing objectives. (Ibid.) 

In declining to reduce the offenses here to misdemeanors, the trial court 

commented: “It’s not a good idea for any judge in any circumstance to substitute his or 

her personal opinion for the verdict of the jury. [¶] If they’re going to ignore the jury, 

why bother to have juries.” Defendant argues the trial court misunderstood (and thus 

abused) its discretion by acceding to the jury’s guilty verdict. Defendant is correct that a 

jury’s verdict does not inform the sentencing court’s discretion under Penal Code section 

17; otherwise, a conviction by jury would preclude reduction under subdivision (b) of 

that section. But the trial court further explained its ruling: “And also I think it would be 

inappropriate in this case, in view of the seriousness of the offenses and the defendant’s 

extreme – extensive criminal history and the defendant’s version of the offense, which I 

am sure is heartfelt but at odds with the testimony of everybody else who was present at 

the time. It could have been very serious if the stick, bamboo stick or cane, as it was 

being used, had hit in a slightly different area. For that reason, I think that the reduction 

for misdemeanor is inappropriate.” he trial court’s reasoning focused on the facts of the 

case, defendant’s criminal history, and public safety, all appropriate considerations upon 

which to deny the requested relief. (Alvarez, supra, 14 Cal.4th at p. 978 [“[A]

determination made outside the perimeters drawn by individualized consideration of the 

offense, the offender, and the public interest” constitutes an abuse of discretion].)
23

Defendant argues that the trial court abused its discretion by failing to give 

“reasoned consideration” to his background, mental condition, age, and the circumstances 

of the offenses. The Supreme Court in Alvarez explained that the trial court, in 

exercising its authority to reduce a wobbler in a case involving three prior strikes, must 

undertake “an intensely fact-bound inquiry taking all relevant factors, including the 

defendant’s criminal past and public safety, into due consideration; and the record must 

so reflect.” (Alvarez, supra, 14 Cal.4th at pp. 981–982.) In declining to reduce the 

offenses here, the trial court stated that it had read and considered defendant’s moving 

papers. The motion urged a misdemeanor sentence because the injuries were minor, the 

victims were neither vulnerable nor faultless, the weapon was a hollow bamboo stick, and 

but for his prior convictions which were closely connected to his chronic homelessness 

and mental health issues, the offenses likely would have been charged as misdemeanors. 

Defendant argued the assaults occurred after he was kicked in the chest, and his conduct 

was mitigated by his history of sexual and physical abuse, substance abuse, mental 

illness, and traumatic brain injury. Defendant supported his motion with a 2011

psychological assessment attributing anger control issues and debilitated daily 

functioning to post-traumatic stress disorder and traumatic brain injury; a 2012 medical 

evaluation (after being hit by a car as a pedestrian) noting bipolar disorder, alcoholism, 

post-traumatic brain injury, post-traumatic stress disorder, and facial bone fractures; and 

county jail mental health records from 2014 noting bipolar disorder, post-traumatic stress 

disorder, alcohol dependence, and positive results from medication (Effexor, Remeron, 

and lithium). 

We do not read Alvarez as requiring the trial court to reiterate defendant’s 

argument on the record when declining to reduce the offenses to misdemeanors. The trial 

court stated that it had read defendant’s moving papers, and the record reflects a decision 
24

based on “individualized consideration of the offense, the offender, and the public 

interest.” (Alvarez, supra, 14 Cal.4th at p. 978.) While the record here may also have 

supported a different conclusion, we find no error in light of the deferential standard of 

review.

2. Discretion Under Penal Code Section 1385

A trial court has discretion to dismiss a prior conviction alleged under the Three 

Strikes law. (Pen. Code, § 1385, subd. (a); People v. Superior Court (Romero) (1996) 

13 Cal.4th 497.) In exercising its discretion, the court must consider whether “in light of 

the nature and circumstances of his present felonies and prior serious and/or violent 

felony convictions, and the particulars of his background, character, and prospects, the 

defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence 

should be treated as though he had not previously been convicted of one or more serious 

and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Factors in 

aggravation and mitigation listed in the California Rules of Court may be relevant to the 

court’s inquiry. (People v. Cuff (2001) 87 Cal.App.4th 991, 1004.) 

We review the denial of a motion to dismiss a strike allegation for abuse of 

discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) Abuse of discretion in 

failing to strike a prior conviction occurs in limited circumstances: where the trial court 

is not aware of its discretion; where the trial court considers impermissible factors; or 

where applying the Three Strikes law would produce an arbitrary, capricious, or patently 

absurd result under the specific facts of a particular case. (Id. at p. 378.) A reviewing 

court’s disagreement with the trial court’s weighing of proper factors (as distinct from the 

trial court’s reliance on improper factors in the weighing process) does not constitute an 

abuse of discretion. (Id. at p. 379.) 
25

Defendant has suffered three prior strike convictions: a 1989 conviction for 

residential burglary (Pen. Code, § 459); a 2005 conviction for assault with a deadly 

weapon (Pen. Code, § 245(a)(1)); and a 2007 conviction for residential burglary (Pen. 

Code, § 459). The trial court denied defendant’s motion to strike the prior strikes, after 

considering relevant factors and concluding that defendant did not fall outside the scope 

of the Three Strikes law. The trial court considered the age of the prior convictions, 

noting that “some” are remote in time, but also finding “it’s part of [defendant’s]

continuous history of criminal conduct” and violence. The court noted that the current 

offenses are wobblers, and that defendant expressed remorse for his conduct. It 

acknowledged as “possible” that defendant’s criminal history resulted from addiction, but 

also observed that “it’s not true that every alcoholic becomes violent.” It found 

defendant to be a dangerous person who has been unable to conduct himself as a lawabiding citizen for long periods of time. It described defendant’s professed willingness 

and ability to rebuild himself as “sort of true, except that... [m]ental health services have 

been available for decades now, but no one can make anyone go and take advantage of 

them.” In considering whether the present offenses were committed because of unusual 

circumstances unlikely to reoccur, the trial court referred without elaboration to “the

similarity of these events to past offenses.” It acknowledged that “defendant has a life 

long history of mental health issues,” but that “he also has a life long history of assaultive 

behavior.” Perhaps most notably, the trial court considered whether punishment under 

the Three Strikes law would be disproportionate to the severity of the current offenses,

stating “[t]hat might apply marginally,” but it concluded in denying the motion that a 

Three Strikes sentence would not be disproportionate to defendant’s criminal history.

Although sentencing did not take place until two months after the hearing on the

motion, given defendant’s three prior strikes and the then-mandatory five-year 
26

enhancements for three prior serious felonies (Pen. Code, § 667), it would have been 

apparent when the trial court denied the motion that defendant would be sentenced to at 

least 25 years to life consecutive to 15 years.

Repeating the points he raised at sentencing, defendant argues that the trial court 

abused its discretion because (1) the 1989 conviction for residential burglary was old and 

did not involve violence; (2) in the current case defendant was provoked and suffered 

injury, while the victims suffered only slight injury; (3) had the court struck two or all

three of the prior strikes, defendant still would have been exposed to a significant 

sentence; and (4) most significantly, the sentence fell outside the spirit of the Three 

Strikes law because defendant had endured a violent and abusive upbringing, had been 

homeless since his mid-teens, and had a long history of alcoholism and mental illness, all 

of which contributed to his criminal conduct. The 2011 psychological assessment, 2012 

medical evaluation, and 2014 jail treatment records appended to defendant’s motion 

amply support the stated history and diagnoses, as we have previously summarized.

A trial court’s sentencing discretion is very broad, and rightly so. Among other 

considerations, as a reviewing court we are not able to observe the demeanor of 

defendants or witnesses, and we therefore do not substitute our discretion for that of the 

trial court. Notwithstanding its broad discretion and our deferential standard of review, a 

trial court’s ruling on a Romero motion remains reviewable. The sentence of 25 years to 

life consecutive to 15 years imposed here presents that rare instance of an absurd result 

under the Three Strikes law that goes beyond mere disagreement with the trial court’s 

decision. We will therefore reverse and remand for reconsideration. 

The trial evidence shows that defendant’s criminal behavior here resulted from a 

late-night, spontaneous altercation between an intoxicated and mentally ill homeless 

person and a group of youths. Defendant struck two members of a group of five young 
27

men with a bamboo stick, scratching one and raising a welt on the neck of the other. 

Witnesses did not provide a clear picture of the genesis of the encounter between 

defendant and the young men. Defendant also was injured. Following the jury’s verdict 

in a trial in which we have concluded the trial court committed a number of evidentiary 

errors, the trial court elected to impose a sentence of 25 years to life consecutive to 15 

years, de facto life imprisonment for defendant who was 53 years old when sentenced.

The record does not support the trial court’s conclusion that this nighttime 

encounter between defendant and the young men outside two fast food restaurants was 

similar to defendant’s prior strikes which, as described in the sentencing report prepared 

by the Probation Department, were characterized by either substantial violence or the 

deliberate entry into homes to steal. We recognize, as did the trial court, that defendant 

has a number of significant prior convictions, but they are not similar to the events 

underlying this case. 

As the sentencing report recognized, defendant’s circumstances were critical here. 

Citing defendant’s “history of homelessness, mental health issues, and alcoholism

[which] most likely contributed to his actions,” the Probation Department stated that the 

trial court could exercise its discretion under Romero, “given the punishment under the 

present Strike Law is disproportionate to the severity of the present offense.”

On these facts, while the jury was entitled to return a guilty verdict on the charged 

offenses, we respectfully disagree with the trial court’s determination that a sentence 

tantamount to life in prison was proportionate. Considering all the evidence and 

circumstances in this particular record, we conclude that the trial court abused its 

discretion by denying defendant any meaningful relief from the Three Strikes law. We 

express no opinion about how many strikes should be stricken on remand. We conclude 
28

only that—in declining to strike any—the trial court abused its discretion under the 

principles set out in Romero.

3. Statutory Changes to Sentencing Enhancements 

The trial court imposed three 5-year prior serious felony enhancements under 

Penal Code section 667, subdivision (a) and two stayed 1-year prior prison term 

enhancements under Penal Code section 667.5, subdivision (b). At the time of 

sentencing, section 1385 prohibited a judge from striking a prior serious felony 

enhancement (Pen. Code, § 1385, former subd. (b)), and prior prison term enhancements

applied to terms served for all felony convictions (Pen. Code, § 667.5, former subd. (b)), 

although enhancements under Penal Code sections 667 and 667.5 could not be imposed 

for the same prior offense. (People v. Jones (1993) 5 Cal.4th 1142, 1153.) The trial 

court now has discretion to strike prior serious felony enhancements (Pen. Code, § 1385; 

Stats. 2018, ch. 1013, § 2 (S.B. 1393), effective Jan. 1, 2019), and prior prison term 

enhancements are now limited to prison terms served for sexually violent offenses (Pen. 

Code, § 667.5, subd. (b); Stats. 2019, ch. 590, § 1 (S.B. 136) eff. Jan 1. 2020). The 

amendments apply retroactively because they are ameliorative and defendant’s judgment 

was not final before their effective dates. (In re Estrada (1965) 63 Cal.2d 740, 744–748 

[new statute allowing lesser punishment applies retroactively to nonfinal judgments]; 

People v. Francis (1969) 71 Cal.2d 66, 75–78 [new statute authorizing sentencing 

discretion retroactively applies to nonfinal judgments]; People v. Lopez (2019) 

42 Cal.App.5th 341–342 [S.B. 136 applies retroactively to nonfinal judgments]; People v. 

Garcia (2018) 28 Cal.App.5th 558, 971–972 [S.B. 1393 applies retroactively to non-final 

judgments].)

Defendant argues we should remand the matter for resentencing in light of S.B. 

1393. Citing People v. McDaniels (2018) 22 Cal.App.5th 420 and People v. Gutierrez
29

(1996) 48 Cal.App.4th 1894, respondent argues that the trial court’s denial of defendant’s 

motion under Romero and Penal Code section 17, subdivision (b) clearly shows it would 

not have dismissed the prior serious felony enhancements if given the opportunity to do

so. The court in Gutierrez held that resentencing was required in Three Strikes cases 

pending appeal at the time the Supreme Court issued Romero (holding trial courts may 

strike prior strike convictions in furtherance of justice (13 Cal.4th at p. 497)), “unless the 

record shows that the sentencing court clearly indicated that it would not, in any event, 

have exercised its discretion to strike the allegations.” (Gutierrez, at p. 1896.) The clear 

indication standard was extended in People v. McDaniels to resentencing under newly 

enacted Penal Code section 12022.53, subdivision (h), providing for the discretionary 

dismissal of a gun enhancement. (McDaniels, at p. 425.)

We are not persuaded that the denial of defendant’s motion is a clear indicator of 

how the trial court would exercise its new discretion to strike prior serious felony 

enhancements. The trial court denied relief under Penal Code section 17, subdivision (b)

because of the seriousness of the offenses and defendant’s criminal history. The trial 

court denied relief under Romero because in the court’s view defendant did not fall 

outside the spirit of the Three Strikes law. The new inquiry is different: whether, in the 

interest of justice, defendant’s sentence should be reduced by 5, 10, or 15 years. We will 

instruct the trial court on remand to exercise its new discretion under sections 667, 

subdivision (a) and 1385.3 

3 We will further direct the trial court on remand to strike the prior prison term 

enhancements, which no longer apply to defendant’s underlying convictions. The 

transcript of the sentencing hearing reveals the trial court’s intent to strike (not stay) those 

enhancements under People v. Jones, supra, 5 Cal.4th at p. 1153. While we have 

authority to correct that clerical error on appeal (People v. Haskin (1992) 

4 Cal.App.4th 1434, 1441), in light of our remand, the appropriate course is for the trial 

court to conform its sentence to S.B. 136.
30

III. DISPOSITION

The judgment is reversed. The matter is remanded for the trial court to: (1) strike 

the prior prison term enhancements, which no longer apply to defendant under Penal 

Code section 667.5, subdivision (b) as amended; (2) exercise its discretion under Penal 

Code section 1385 as to the prior serious felony enhancements; and (3) enter a new order 

granting defendant’s Romero motion, in whole or in part, to arrive at what the trial court 

determines is a just sentence that is proportionate to defendant’s offenses and appropriate 

to defendant’s history and circumstances. The trial court shall enter an amended 

judgment and transmit a new abstract of judgment to the Department of Corrections and 

Rehabilitation.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Danner, J. 

H043029 - The People v. Dryden 
Trial Court: Santa Clara County Superior Court 

Case No.: C1367902

Trial Judge: Hon. Michele McKay McCoy 

Attorneys for Plaintiff/Respondent

The People:

Xavier Becerra 

 Attorney General of California 

Gerald A. Engler

 Chief Assistant Attorney General 

Jeffrey M. Laurence 

 Senior Assistant Attorney General 

Eric D. Share

 Supervising Deputy Attorney General 

Ashley Harlan

 Deputy Attorney General 

Attorneys for Defendant/Appellant

James Dryden:

Jim Hee Kim

Dwyer & Kim LLP